What Happened In The MassTorts World Last Week? 2018-Dec-10

On November 16, attorneys representing a plaintiff in a lawsuit filed against Monsanto company requested U.S District Judge Vince Chhabria for an expedited trial as the plaintiff has less than six months to live as per his oncologist. On Friday, November 30, Monsanto told the California federal judge the dying man should not be granted a fast-track trial. The lawsuit filed on behalf of the 66-year-old California resident stated he was diagnosed with non-Hodgkin's lymphoma (NHL) due to exposure to glyphosate-containing weed killer Roundup.

The second bellwether trial case selected is the lawsuit filed by a plaintiff, which is scheduled to go for trial on February 25, 2019. A California couple allegedly affected by Roundup's adverse effects was granted an expedited trial by Superior Court Judge Ioana Petrou in Oakland last month; the case will head to trial on March 18, 2019, in California.

Several individuals affected by Roundup herbicides have sued the agricultural company in California, Missouri, and Delaware state courts. Multidistrict litigation has been formed in the U.S. District Court, Northern District of California, overlooked by Judge Vince Chhabria.

Monsanto has a brief history of legal troubles and Glyphosate is just another herbicide of the company to attract lawsuits. Plaintiffs across the U.S. have filed numerous lawsuits. IARC, considered to be the apex in the field of cancer research, classified glyphosate as a “probable human carcinogen.” According to IARC, Roundup is made up of other ingredients that are toxic in themselves, and are also known to increase the toxicity of glyphosate. Monsanto has known this for many years but still refuses to study the link between cancer and Roundup.

As per an order issued on November 20 in the U.S. District Court, Southern District of Ohio, the bellwether trials involving C.R. Bard Inc.'s polypropylene mesh lawsuits will commence in 2020. The plan for three trials has been set with the first trial to begin tentatively on May 8, 2020, and the remaining lawsuits will head to trial on July 13, 2020, and September 14, 2020.

The court will soon create a discovery pool comprising of 12 representative cases linked to hernia mesh complications. A list consisting of 6 cases from both parties (Plaintiff and Defense Counsel) is required to be submitted earliest by January 31, 2019. When the discovery process concludes, the court will form a bellwether pool by picking 6 lawsuits from the initial discovery pool. The parties are required to submit a list of 3 cases on July 13, 2020. The final bellwether cases will be announced by the court on February 14, 2020.

The mesh products named in the lawsuits contain polypropylene material, which can easily break, shrink or wear off. This often leads to device migration, organ perforation, infection, and several other complications. Lawsuits allege the defective design of the hernia mesh often required the patients to undergo additional correction surgeries.

The multidistrict litigation underway in the Southern District of Ohio currently holds at least 209 pending hernia mesh lawsuits filed by plaintiffs who suffered extreme complications and harmful side-effects due to polypropylene hernia mesh devices manufactured by Bard and Davol. The complaints filed include Composix Mesh, Kugel Hernia Patch, CK Parastomal Patch, Modified Kugel Patch, Composix E/X Mesh, and Ventralex Hernia Mesh. The MDL No. 2846, In Re: C.R. Bard/ Davol, Polypropylene Hernia Mesh Products Liability Litigation is overlooked by Judge Edmund A. Sargus for coordinated pretrial proceedings.

On December 3, 2018, the U.S. Supreme Court refused to hear a petition filed by the parents of a National Hockey League player. The petition stated that the player lost his life due to an overdose of opioids prescribed by the team doctors. The ruling ended the five-year-old litigation in which the player's parents blamed NHL for his recurring concussions during his career.

The player, who died at the age of 28 in 2011, played for the Minnesota Wild and the New York Rangers; an autopsy revealed he suffered from chronic traumatic encephalopathy, or CTE, a devastating brain condition common among ice-hockey players. His parents filed a wrongful death lawsuit in 2013 against NHL and argued that a trial judge improperly tossed the suit under a Minnesota procedural rule, which requires wrongful death and other survival actions to be presented by a court-appointed trustee. The U.S. Court of Appeals for the Seventh Circuit found that the family fortified their claims by failing to respond to the NHL's argument that the complaint filed against the league was unjust. The U.S. District Court for the Northern District of Illinois dismissed the case in 2017 and warned that the ruling, “should not be read to commend how the NHL handled the victim's particular circumstances or the circumstances of other NHL players who over the years have suffered injuries from the on-ice play.''

Opioid overdose death lawsuits are consolidated as a part of multidistrict litigation, MDL No. 2804 (In Re: National Prescription Opiate Litigation) in the Northern District of Ohio before U.S. District Judge Dan A. Polster. The first bellwether trial in the litigation has been scheduled for September 3, 2019.

Allegations are made against opioid manufacturers that they violated the rules by not informing the Federal authorities about the unusual size, suspicious purchases, or the frequency of bulk purchases. There is an allegation that huge benefits were reaped by manufacturers, and they intentionally failed to inform the medical providers about the addictive nature and consequences of opioids.

In an order issued on November 30, Judge Bernard Graham of the Kings County Supreme Court stated that a private citizen had no right to assert a negligence claim against an opioid manufacturer under the Controlled Substances Act or its State equivalent law. The NY judge stated that the statutes did not indicate the drug manufacturers must restrict distribution of the prescription drugs. The manufacturers are only required to collect and record data and make reports to federal and state agencies.

The U.S. Judicial Panel on Multidistrict Litigation denied a request from plaintiffs representing "opioid babies" of mothers who were addicted to the opioid drug to form a separate MDL track for them. Recently, Texas has asked the state's MDL panel to rethink consolidating its opioid abuse lawsuit with others against Purdue Pharma LP.

Allegations are made against opioid manufacturers that they violated the rules by not informing the Federal authorities about the unusual size, suspicious purchases, or the frequency of bulk purchases. There is an allegation that huge benefits were reaped by manufacturers, and they intentionally failed to inform the medical providers about the addictive nature and consequences of opioids.

Opioid multidistrict litigation MDL No. 2804 (In Re: National Prescription Opiate Litigation) was formed in the Northern District of Ohio before U.S. District Judge Dan A. Polster. The first bellwether trial in the litigation will commence on September 3, 2019.

In a case management order issued on December 3, Judge John E. Jones III overseeing all the 3T Heater-Cooler System heart infection lawsuits appointed a settlement master Randi Ellis to negotiate the settlement plans to avoid the need for jury trials for dozens of cases. The order requires both the parties to meet and discuss every month in presence of Ellis to frame a settlement agreement, and Ellis is supposed to report back progress to the Court. Ellis is a part of the Academy of Court Appointed Special Masters.  The order also stated the plaintiffs and defendants are required to split Ellis' fees evenly.

Stockert Heater-Cooler System (3T) is manufactured by LivaNova PLC (formerly Sorin Group Deutschland GmbH) and provides temperature-controlled water to heat exchanger devices (cardiopulmonary bypass heat exchangers, cardioplegia heat exchangers, and thermal regulating blankets) to warm or cool a patient during cardiopulmonary bypass procedures lasting six (6) hours or less. It is a Class II medical device that was approved by the U.S. Food and Drug Administration (FDA) via a 510K process in 2006. It is also called Sorin 3T.

There are currently 85 product liability cases filed against the makers of Sorin 3T Heater-Cooler all with a similar allegation that the warming system was contaminated, released a mist into the operating room's air during the heart surgery, which resulted in nontuberculous mycobacterium (NTM) infections in several patients. Plaintiffs alleged the infection prevailed even years after the procedure was over. The NTM claims are centralized as a part of federal multidistrict litigation in the Middle District of Pennsylvania to reduce conflicting pretrial rulings, duplicative discovery, and to serve the convenience of parties and court systems.

A recent draft screening assessment released by the Health Canada and Environment and Climate Change Canada indicated that inhaling loose talcum powder may also adversely affect lungs and cause decreased lung function, chronic cough, breathing problems, and fibrosis. Talcum powder litigation already underway in several state courts allege the asbestos exposure from talc causing ovarian cancer in hundreds of people in the U.S.

The Canadian government officials wanted to alert the patients to refrain from breathing loose talcum powders to avoid serious complications, especially when used around female genitals. Out of 29 studies conducted 21 of them pointed at links between talcum powder and ovarian cancer. Health Canada stated that they are taking measures to restrict the use of talc in cosmetics, over-the-counter drugs, and other health products. However, the agency would wait until a final assessment is done to take any further action. The draft screening assessment and Risk Management Scope are available for public comment until February 6, 2019. In a press statement, Muhannad Malas, toxics program manager at Environmental Defence, told that it might take years for Health Canada to act on this matter.

Johnson & Johnson's (J&J) Baby Powder, one of the most popular products containing talcum powder, is linked to increasing a woman's risk of ovarian cancer if she uses it regularly in the genital area. In a few cases, the cancer tissue was studied using an electron microscope and was found to have talc in it, which supported the claim that the cancer was caused by the talcum powder and increases the talc-related cancer risk.

Even as more than 10,000 cases are filed against J&J, the company has won four mesothelioma trials and four mistrials in other asbestos cases. A lawsuit filed by a plaintiff will head to trial in January 2019 over claims that she suffered due to asbestos exposure from J&J's talcum powder.